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2008 DIGILAW 1108 (RAJ)

Gokul Chand v. Bhanwar Lal

2008-04-23

DINESH MAHESHWARI

body2008
Honble MAHESHWARI, J.–Learned counsel for the appellants has been heard on the applications moved on 14.09.2007 respectively under Order XXII Rule 4 & 9 read with Section 151 of the Code of Civil Procedure (CPC) (IA No. 4731/2007), under Section 5 of the Limitation Act, and under Order I Rule 10 (2) read with Section 151 CPC (IA No. 4732/2007); and learned counsel has also been heard at length on the competence of this second appeal in view of the facts as stated in the said applications, about demise of the defendants-respondents Nos. 1 and 2 during the pendency of the first appeal itself. (2). Having examined the impugned judgment and decree and having perused the copy of plaint and attached plan as placed for perusal by the learned counsel for the appellants during the course of submissions and having given a thoughtful consideration to the entire matter, this Court is clearly of opinion that this second appeal is required to be dismissed as incompetent. (3). The relevant aspects of the matter are that the plaintiffs, appellants and the respondent No. 5, filed a suit for perpetual and mandatory injunction with the claim of easementary rights arraying Shri Bhanwar Lal son of Shri Ganpat Lal Bhargava and Shri Jagdish son of Shri Ganpat Lal Bhargava as defendants Nos. 1 and 2 respectively(respondents Nos. 1 and 2 herein); and the Administrator of the Municipal Board, Kuchaman City and the Secretary of the Municipal Board, Kuchaman City as defendants Nos. 3 and 4 respectively (respondents Nos. 3 and 4 herein). Put in a nut-shell, the case of the plaintiffs has been that their ancestral property, comprising of house and open land, was situated in Ward No. 2 near Old Post Office at Kuchaman City and a patta was issued in the name of father of the plaintiffs and his brother from Thikana Kuchaman on 19.02.1936; that the said land was sold in execution of a decree obtained by Nandlal and was purchased by one Ramniwas who, in turn, sold the same to the father of the plaintiffs in Svt. Year 2011 and handed over possession. The plaintiffs annexed a plan to the plaint and submitted that the land in question was shown comprised within marks ABCD measuring 35 x 10. Year 2011 and handed over possession. The plaintiffs annexed a plan to the plaint and submitted that the land in question was shown comprised within marks ABCD measuring 35 x 10. The plaintiffs alleged that on the south-eastern side of the said land was situated another open piece of land marked EFGH, a portion whereof was used as way by the plaintiffs and other residents of the locality. According to the plaintiffs, starting from the eastern side marked v, the said way ran towards south. (4). While stating that the defendants Nos. 1 and 2 were brothers, the plaintiff alleged that upon making of an application by the said defendants the Municipal Board regularised 38 x 32 size piece of land in their favour but their claim for regularisation of the land in dispute marked EFGH was rejected. The plaintiffs further alleged that again an application was moved by the defendant No.2 to the Municipal Board on 16.07.1986 for purchasing the said land as a strip whereupon the plaintiffs raised objections that were pending; and that the defendants moved yet another application on 16.05.1988 whereupon again the plaintiffs have again raised objections. The plaintiffs alleged that they had asked for construction permission over their pattasud land but the Municipal Board has failed to accord the requisite permission and on the other hand, the defendants Nos. 1 and 2 were seeking to put a wall around the disputed land EFGH and the officers of the Municipal Board were also intending to issue a patta in favour of the defendants Nos. 1 and 2. (5). Stating the cause of action to have arisen when the defendants Nos. 1 and 2 threatened to erect a wall around the land marked EFGH and expressed their intention to obtain patta from the Municipal Board, the plaintiffs filed the suit claiming the reliefs of injunction against the defendants Nos. 1 and 2 for restraining them from raising any construction on the land marked EFGH and for further restraining them from interfering with its use as a way by the plaintiffs; and for further injunction against the defendants Nos. 3 and 4 prohibiting them from issuing any document of title in favour of the defendants Nos. 1 and 2 in respect of the said land marked EFGH. The plaintiffs also claimed the relief in mandatory form that the defendants Nos. 3 and 4 prohibiting them from issuing any document of title in favour of the defendants Nos. 1 and 2 in respect of the said land marked EFGH. The plaintiffs also claimed the relief in mandatory form that the defendants Nos. 3 and 4 should accord them permission to raise construction on their pattasud land marked ABCD. (6).The suit so filed by the plaintiffs-appellants was put to contention on various grounds by the defendants while denying the claim of ownership of the plaintiffs on the land marked ABCD and further denying their claim of easementary right of way on the land marked EFGH. The suit was put to trial by the learned Trial Court after framing the following issues:- 1- vk;k oknhx.k ds jgoklh Hkw[k.M ftls okni= ds lkFk layXu uDks esa ,-ch-lh-Mh- ls nfkZr fd;k x;k gS] dh lhek,a o uki ogh gS tks oknh us okni= dh pj.k la[;k 2 esa of.kZr fd;k gS\ 2- vk;k fooknxzLr LFky ftls okni= ds lkFk layXu uDks esa ekdZ bZ-,Q-th-,p- ls nfkZr fd;k x;k gS ij oknhx.k djhc 80-90 o"kZ ls vkokxeu dj jgs gSa o oknhx.k dks mDr LFky ij lq[kkf/kdkj izkIr gks x;k gS\ 3- vk;k oknhx.k bl vkk; dh LFkkbZ fu"ks/kkKk izkIr djus ds vf/kdkjh gSa fd izfroknhx.k ls 3 o 4 fooknxzLr Hkw[k.M ftls layXu uDks esa bZ-,Q-th-,p- ls nfkZr fd;k x;k gS] dk iV~Vk izfroknh la- 1] 2 ds uke ls tkjh ugha djsa\ 4- vk;k oknhx.k bl vkk; dh LFkkbZ fu"ks/kkKk izkIr djus ds vf/kdkjh gS] fd izfroknh la- 3] 4 oknhx.k dks okni= ds lkFk layXu uDks esa nfkZr ekdZ ,-ch-lh-Mh- LFky ij fuekZ.k djus dh btktr nsosa\ 5- vuqrks"k\** (7). The learned Trial Court, after examining the oral and documentary evidence available on record, held in issue No.1 that the plaintiffs have failed to establish if the land marked ABCD in the plan was of the same boundaries and the measurements as were stated in paragraph 3 of the plaint; and in issue No.2 rejected the case of the plaintiffs that the land marked EFGH was used as a way; and decided issues Nos.3 & 4 against the plaintiffs as a consequence of the findings on issues Nos. 1 and 2. Accordingly, the learned Trial Court held that the plaintiffs were not entitled for any injunction against the defendants and dismissed the suit with costs by the impugned judgment and decree dated 12.11.1997. 1 and 2. Accordingly, the learned Trial Court held that the plaintiffs were not entitled for any injunction against the defendants and dismissed the suit with costs by the impugned judgment and decree dated 12.11.1997. (8). The matter was taken in first appeal by the plaintiffs, being Civil Appeal (Decree) No. 82/1998 (23/1997). The learned First Appellate Court has endorsed the findings of the learned Trial Court on issues Nos. 1 and 2 and has also noted that no arguments were pressed on issues Nos. 3 and 4. Consequently, the learned First Appellate Court has dismissed the appeal preferred by the plaintiffs-appellants by its impugned judgment and decree dated 22.01.2007. Aggrieved, the appellants, plaintiffs Nos. 1 and 3 to 7, have preferred this second appeal arraying the plaintiff No. 2 Dharam Chand as proforma respondent No.5; and the defendants Nos. 1 and 4 as respondents Nos. 1 to 4. This second appeal was admitted for consideration by this Court on 28.03.2007 while formulating the following substantial questions of law:- "(1) Whether the two courts below misread and misconstrued the patta Ex.1 and plan Ex. 2 ? (2) Whether the appellant was not given proper opportunity to lead evidence in the trial court ?" (9). Notices sent in this appeal to the respondents Nos. 3 to 5 have been returned duly served. However, notices sent to the respondents Nos. 1 and 2 have been returned with the report of the addressees having expired. (10). The appellants thereafter have moved the applications aforesaid under Order XXII Rule 4 & 9 read with Section 151 CPC, under Section 5 of the Limitation Act, and under Order I Rule 10(2) read with Section 151 CPC . The submissions and the prayers in the aforesaid applications are to the effect that the appellants made inquiry after receiving a letter from their counsel dated 17.08.2007 and came to know that the respondent No.1 Bhanwarlal had expired while the first appeal was pending in the court of Additional District Judge, Parbatsar; and because he had expired unmarried and issueless leaving behind no legal representatives, his name may be struck out from the array of respondents. Further, according to the appellants, the respondent No.2 Jagdish had expired on 14.02.2002 during the pendency of the first appeal. Further, according to the appellants, the respondent No.2 Jagdish had expired on 14.02.2002 during the pendency of the first appeal. The appellants would state they were misled because the names of both the persons aforesaid appear in the judgment and decree of the First Appellate Court; and the said persons were arrayed as parties in this second appeal under a bona fide belief. The appellants have further stated the names of legal representatives of the respondent No.2 and have prayed that such legal representatives may be brought on record in his place. The appellants have further prayed that in case this Court would come to the conclusion about abatement of this second appeal due to demise of respondents Nos. 1 and 2, such abatement may be set aside and the legal representatives of the respondent No.2 may be brought on record. On these very reasons and grounds, the appellants have prayed for condonation of delay in bringing on record the legal representatives of the deceased respondent No.2. By way of the third application under Order I Rule 10(2) CPC, the appellants have reiterated the prayer of deleting the name of respondent No.1 from the array of parties. Notices on the applications were ordered to be issued on 10.10.2007 and have been received duly served but nobody has appeared either for the proposed legal representatives or for the respondents Nos. 3 and 4. (11). It is not in dispute that the said respondents Nos. 1 and 2 had expired during the pendency of the first appeal and no substitution was made in the first appeal. It has clearly been stated in the affidavit filed in support of the application for condonation of delay,- ^^;g gS fd mPp U;k;ky; ls jsLiksMsUV ds uke lEeu tkjh gksus o mu ij fjiksVZ vkus ij fd jsLiksMsUV ua- 1 o 2 QkSr gks pqds gSa rc eSaus ekywekr dh rks irk pyk fd mudk nsgkur rks nkSjkus izFke vihy gh gks x;k FkkA bl dkj.k muds dk;e cukus dh vc nj[okLr isk dh gSA bl nsjh dk mfpr dkj.k gSA lks tks nsjh dk;e eqdke dks vc jsdkMZ ij ysus dh nj[okLr isk dh gS ml nsjh dks duMksu Qjek;k tkuk U;k; fgr esa gSaA** (12). After examining the contents of the aforesaid applications with supporting affidavits and the subject matter of litigation, learned counsel for the appellants was posed the question about the very competence of this second appeal on the admitted fact situation that the defendants Nos. 1 and 2 had expired during the pendency of the first appeal itself and their legal representatives were not brought on record. Learned counsel responded with the submissions that the present second appeal having been admitted, the same is of continuation of the suit and abatement, if any, could be set aside and delay in filing the application could be condoned under Section 5 Limitation Act. Learned counsel contended that the appellants were not informed about demise of the said defendants-respondents during the pendency of the first appeal and the provisions of Order XXII Rule 10-A CPC were not complied with. According to the learned counsel, when the plaintiffs-appellants came to know about the demise of the said defendants as per the report received on the notices sent in this appeal, they have moved the requisite applications without further loss of time. Learned counsel submitted that the appellants deserve to be heard on merits of the case and abatement, if any, deserves to be set aside in the interest of justice. (13). The submissions aforesaid are not convincing nor could be countenanced for the simple but fundamental reason that on the admitted fact situation it is clear that the defendants Nos. 1 and 2 had expired during the pendency of the first appeal preferred by the plaintiffs-appellants and no application for substitution of their legal representatives was moved before the First Appellate Court. The first appeal as taken by the plaintiffs-appellants had abated qua the defendants-respondents Nos. 1 and 2 upon their demise and upon not getting their legal representatives substituted. Abatement being automatic and being in operation of law is not dependent on passing of any order by the Court; nor abatement of the matter is saved merely because the information contemplated by Rule 10-A of Order XXII CPC is not extended by the counsel representing the deceased parties. (14). For the subject matter of the suit and first appeal, where the plaintiffs-appellants claimed the relief that the defendants Nos. (14). For the subject matter of the suit and first appeal, where the plaintiffs-appellants claimed the relief that the defendants Nos. 1 and 2 be restrained from raising construction on the land marked EFGH and further that the defendants should not create obstruction in use of the said land marked EFGH as a way by the plaintiffs and yet further, that the defendants Nos. 3 and 4 may not regularise the said land marked EFGH in the name of defendants Nos. 1 and 2, upon abatement qua the defendants Nos. 1 and 2, the appeal could not have been proceeded further and abated as a whole. (15). A suggestion as made in the aforesaid applications that the appellants were misled by the title stated in the impugned judgment and decree and hence joined the said respondents as parties in this second appeal, is not a correct projection of the matter. The first appeal was taken by none other than the plaintiffs-appellants; and proper representation of the parties on record was their prime responsibility. There is no question the appellants being misled by the cause-title as stated in the impugned judgment and decree; that being in conformity with the frame of the appeal as filed and continued by non else but the plaintiffs-appellants. (16). The submission that the appeal is a continuation of the suit proceedings does not in any manner lend competence to this second appeal. Assuming that the plaintiffs-appellants were not aware of death of the said defendants-respondents and came to know about their demise only after receiving such report on the notices sent in this second appeal, the fact of the matter remains that admittedly the said defendants-respondents had expired during the pendency of the first appeal and no such applications for substitution of their legal representatives and setting aside of abatement were moved before the First Appellate Court. The appellants have not given the date of demise of the respondent No.1 but have stated the date of demise of the respondent No.2 as 14.02.2002; and admittedly both of them had expired during pendency of the first appeal that was filed in the year 1997 and was decided in the year 2007. The conclusion is inevitable that the first appeal had abated qua the said defendants-respondents much before it was taken up for disposal and, in view of its subject-matter, had necessarily abated as a whole. (17). The conclusion is inevitable that the first appeal had abated qua the said defendants-respondents much before it was taken up for disposal and, in view of its subject-matter, had necessarily abated as a whole. (17). The prayer for substitution of the legal representatives of the deceased respondents in this second appeal cannot be granted because once the first appeal is taken to have abated, this second appeal under Section 100 CPC remains incompetent. When the first appeal itself had abated, any decision rendered therein could only be treated non-est and could least be considered open to challenge in second appeal. The applications as moved by the appellants are required to be rejected and this appeal is required to be dismissed as incompetent. (18). It has of course been noticed from the issues framed in the case and the copy of plaint that there was another cursory relief claimed only against the defendants Nos. 3 and 4, of mandatory order that they should accord construction permission to the plaintiffs on their land marked ABCD; and this aspect of the matter could have been segregated from other reliefs as claimed against the deceased defendants or jointly against the deceased defendants with other defendants. It is noticed that such aspect of the matter regarding construction permission to the plaintiffs was put in issue No.4 and the learned Trial Court decided the same against the plaintiffs only as a consequence of decision on other issues against them though the question involved in issue No.4 was slightly different. However, this part of the matter does not detain us further for the significant fact that the finding on issue No. 4 was not assailed before the learned First Appellate Court as is noticed in paragraph 13 of the impugned judgment dated 22.01.2007. When the question related to issue No.4 has not been put for consideration before the learned First Appellate Court and thus is removed out of the subject-matter of first appeal, the entire of the first appeal remained primarily against the defendants Nos. 1 and 2, i.e., the respondents Nos. 1 and 2. Both of them having expired and their legal representatives having not been brought on record, the first appeal itself had abated as a whole as noticed above. (19). 1 and 2, i.e., the respondents Nos. 1 and 2. Both of them having expired and their legal representatives having not been brought on record, the first appeal itself had abated as a whole as noticed above. (19). In the aforesaid view of the matter, even when admitted for hearing, it is but apparent that this second appeal was entertained only because the fact regarding demise of the respondents Nos. 1 and 2 was not stated, may be for it was not available with the appellants either. In any case, in the admitted fact situation, this second appeal remains incompetent and no order for substitution of legal representatives of the deceased respondent No. 2 could be passed herein. In this fact situation, the other application for deleting the name of respondent No.1 is wholly redundant because even if the name of respondent No.1 is deleted, the root cause of incompetence of this second appeal, i.e., abatement of the first appeal itself, remains as it is. (20). Hence, all the applications aforesaid are rejected; and this second appeal is dismissed as incompetent.